A judge’s decision to award the Jaguar Land Rover class action to Gilbert + Tobin was found to be “procedurally unfair”.
The full court of the Federal Court said it was persuaded there was a “breach of procedural fairness” when Justice Michael Lee awarded the class action to Gilbert + Tobin (G+T) late last year.
G+T’s victory in the identical Toyota class action was not a “neutral factor” in deciding to stay Maurice Blackburn’s case, Justice Lee said.
After Justices Bernard Murphy, Thomas Thawley, and Angus Stewart allowed the appeal on Friday (17 May), the parties said it was open to consolidating, pending documentation and “minor” disagreements.
Earlier in the day, counsel for G+T said Justice Lee was looking at the decision “through the lens of the group members” and had given both parties ample time to “address” the suggestion that G+T could take over the case if it made the undertaking to cap its fees.
The counsel added that Maurice Blackburn should not have taken issue with Justice Lee’s reference to the Toyota matter in his judgment, given Justice Lee’s involvement in both class actions.
“It can’t be said it came as a surprise that His Honour had regard to that matter. If that is a complaint to be seriously made, His Honour should have been asked to recuse himself,” he said.
Counsel for Maurice Blackburn, Cameron Moore, rejected the submission that the firm was given time to respond to Justice Lee’s proposal, and said the suggestion “does not withstand scrutiny”.
“There was certainly no opportunity to correct what had gone wrong.
“It is, in effect, impossible to cure the problem, which should never have occurred, by giving a one-sided opportunity. What occurred should never have occurred,” Moore said.
The Jaguar Land Rover class action alleges the diesel particulate filter (DPF) system in the vehicles allegedly becomes prone to blockage and can cause the vehicle to lose power suddenly with little to no warning, posing a safety hazard to drivers, passengers and pedestrians.
The allegedly defective system was also causing ongoing mechanical issues that required frequent servicing.
